Family & Relationships

What's a Surrogacy Agreement?

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With the prevalence of surrogacy in the celebrity gossip pages, it may seem like the practice has reached the point of legal clarity and acceptance. From Kim Kardashian and Kanye West, to Neil Patrick Harris and David Burtka to Nicole Kidman and Keith Urban, there are many examples of couples (and individuals) who have chosen to go this route. However, it may be surprising to hear that matters surrounding surrogacy are still common court cases – and the practice is even illegal in some states.

Surrogacy is an agreement between two parties in which a woman agrees to carry and give birth to a child for the other party. It’s important to know the two types of surrogacy and the difference between them:

  1. Traditional or ‘straight’ surrogacy is when the surrogate mother is also the biological mother.
  2. Gestational surrogacy is when the surrogate is implanted with a donor embryo and shares no genetic connection with the child.

Today it is far more common for people to opt for gestational surrogacy than traditional. The technology to freeze embryos has been around since the 1980s, when assistive reproductive technology became mainstream. The medical procedures and process of in vitro fertilization (IVF) and implantation are fairly straightforward, so where might legal matters arise?

Getting your documents in order

Having and raising children can be very rewarding – but the surrogacy process should not be looked at lightly. You should set up a surrogacy agreement to help sort out the details ahead of time, so the focus can be on preparing for the baby’s arrival and life after the child is born. A surrogacy agreement or contract is a document put together to ensure that the surrogate and the legal parents are treated fairly and all expectations for the process are being met.

This form can cover everything from compensation to medical decision-making. Will you want to decide who is allowed in the delivery room or if the surrogate should avoid any risky behaviors while pregnant? This is the place to lay everything out and for all parties to be in agreement.

Though the medical facility or fertility clinic you work with may have templates or formatting ideas for these documents, these may not be viewed as enforceable surrogacy contracts by the law. Putting documents together before the child’s birth ensures that no issues arise with questions on birth certificates or legal custody of the child. 

A family law attorney – or one who specializes in surrogacy – will be able to help you draft an agreement and a pre-birth order. Legal representation can also provide advice before you sign a contract drafted by another party. As with all legal matters, remember to seek your own legal counsel – instead of relying on someone who may not have your best interests in mind.

Laws from state to state

Most surrogacy agreements are not undertaken by close family or friends (aka altruistic surrogacy), and it’s vital that you follow the laws in your state before signing any contracts or making and accepting any payments. Understanding your options and any legal implications from the beginning could save you from stress and financial worry in the future.

Perhaps most importantly, check to see if surrogacy is legal in your state. As of 2019, New Jersey had just recently passed legislation to allow the practice, but a bill in New York state that would make agreements enforceable failed to pass into law. State courts have the right to decide if contracts are enforceable, as the U.S. Supreme Court has thus far declined to hear any cases related to surrogacy agreements and contracts. Some jurisdictions require these agreements to match state adoption rules, and at least one state allows contract to be voided during or shortly after a pregnancy. Still others do not allow compensation of any form for the surrogate.

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